Asylum seekers in limbo on high seas

Michael Gordon, Ben Doherty and Sarah Whyte

More than 150 asylum seekers, including about 40 children, face living in limbo on the high seas in an Australian customs vessel for weeks, while their fate is decided in the High Court.

Lawyers for the Abbott government and the asylum seekers agreed on a timetable for court action on Tuesday after the government promised to give 72 hours' notice in writing if it intended to hand the asylum seekers to Sri Lankan authorities. A directions hearing will be held within three weeks, raising the question of where the asylum seekers will be held in the interim.

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During the hearings, the government revealed that it had intercepted a boat carrying the asylum seekers outside Australia's migration zone and transferred them to a customs vessel. This follows the revelation on Monday that it had already handed over to Sri Lanka 41 asylum seekers on another boat after they were subjected to ''enhanced screening'' at sea.

Lawyers representing those on the second boat say they will challenge any transfer of the 153 people to Manus Island or Nauru while the case proceeds, on the grounds that such a transfer would be unlawful because the boat was intercepted on the high seas.

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Another option would be to transfer the asylum seekers to Christmas Island until the case is decided. Greens senator Sarah Hanson-Young urged the government to bring the asylum seekers to Australia to assess their claims, saying they had already been at sea for three weeks and were ''anxious and frightened''.

Labor's immigration spokesman, Richard Marles, argued the group could have been assessed on Christmas Island or Manus Island.

A Sri Lankan navy boat (left) on patrol in the southern port of Galle. Photo: AFP

''The government has options,'' he said. ''The reason they are not taking those options is because they want to protect nothing other than a political scoreboard - and that is not good enough and in the process what they are doing is trashing this country's international reputation.''

Ian Rintoul from the Refugee Action Coalition said the government had offered no commitments on what it would do with the asylum seekers in its custody.

''I have no doubt [Immigration Minister] Scott Morrison is currently working the phones trying to find some godforsaken place to dump them,'' he said.

In Parliament, the government's Senate leader, Eric Abetz, defended its hard line on boat arrivals, declaring: ''I see no sense of social justice whatsoever in giving priority to those who bypass safe haven after safe haven after safe haven and then pay a criminal to get them to the front of the queue.''

Human rights lawyer George Newhouse said after the hearing: ''What the government's decision today means is that a group of vulnerable men, women, and children will not be sent back to their persecutors in Sri Lanka.''

Mr Newhouse said the asylum seekers would be given access to legal representation.

High Court Justice Susan Crennan said during the hearing that a challenge to any handover would be heard ''expeditiously'' by the full High Court.

Counsel for the government Justin Gleeson, SC, said the boat carrying the asylum seekers had been intercepted outside Australia's migration zone, ending more than a week of secrecy by the government. Appearing via video link from Sydney, Mr Gleeson said the government had the executive discretion to determine where those detained ended up under the Maritime Powers Act.

Ron Merkel, QC, acting for the asylum seekers, claimed the government did not have the power to lawfully return the asylum seekers to Sri Lanka against their will before their claims were determined.

Mr Merkel has issued writs on behalf of 50 of those on board, including eight children aged between two and 16. He said that once an assessment of the claims had begun, the government was lawfully bound to take it to its conclusion under the provisions of the Migration Act.